Case T-450/08: Action brought on 6 October 2008 — Coverpla v OHIM — Heinz-Glas (design)
Date: 2008-10-06
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), glass, trade-mark law

C 6/34

EN

Official Journal of the European Union

10.1.2009

The applicant, moreover, claims that
the contested decision
ignores the existence of the applicant's rights and sets up a
system through which the applicant's right to use the 2 GHz
spectrum is infringed. Moreover, it is submitted that the decision
puts in great jeopardy the applicant's considerable investments
to date and forces the applicant to participate to the EU tender
process while interfering in the day-to-day running of its busi-
ness.

Further, the applicant claims that by adopting the contested
decision, the defendant has acted disproportionately and in a
discriminatory way, contrary to the applicant's legitimate expec-
In fact, the applicant contends, that contrary to its
tations.
rights and/or legitimate expectations, the contested decision is
founded on the premise that the whole of the 2 GHz spectrum
is available for allocation, since it provides for the selection and
authorisation of operators of MSS to utilise the entire range of
frequencies existing in the 2 GHz spectrum.

In addition, it is submitted that the contested decision violates
the applicant's rights to the peaceful enjoyment of the benefits
accorded to the ICO-P system as a result of recognition of the
recording by the ITU in the Master International Frequency
Register maintained by the ITU, and other similar property
rights, contrary to Article 1 of Protocol 1 of the European
Convention of Human Rights and international law.

(1) OJ 2008 L 172, p. 15.

applicant's appeal and declared the Community design ‘Tour’
No 29178-0002 invalid;

— declare Community design ‘Tour’ No 29178-0002 in

class 09-01 valid.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Community design No 29178/0002
for ‘phials’

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity: Heinz-Glas GmbH

Trade mark right of applicant for the declaration: An unregistered
phial named ‘Empire’ (reference number F 3990)

Decision of the Cancellation Division: Declaration of invalidity of
the Community design

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The Community design does have the requisite
novelty; the documents which Heinz-Glas GmbH submitted to
show that it disclosed to the public a prior design of an identical
phial have no evidential value.

Action brought on 6 October 2008 — Coverpla v OHIM —
Heinz-Glas (design)

Action brought on 6 October 2008 — DHL Aviation et
DHL Hub Leipzig/Commission

(Case T-450/08)

(2009/C 6/69)

Language in which the application was lodged: French

(Case T-452/08)

(2009/C 6/70)

Language of the case: English

Parties

Parties

Applicant: Coverpla (Nice, France) (represented by: P. Greffe and
M. Chaminade, lawyers)

Applicant(s): DHL Aviation NV (Zaventem, Belgium) and DHL
Hub Leipzig GmbH (Schkeuditz, Germany)
(represented by:
A. Burnside, Solicitor and B. van de Walle de Ghelcke, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Defendant(s): Commission of the European Communnities

Other party to the proceedings before the Board of Appeal of OHIM:
Heinz-Glas GmbH (Kleintettau, Germany)

Form of order sought

Form of order sought

— Annul the decision of the Third Board of Appeal of 7 July
2008 (Case R 1411/2007-3) in so far as it dismissed the

— Annul the decision in so far as it identifies the applicants as
beneficiaries of State aid that is considered to be incompa-
tible with the common market, and in so far as the decision
orders Germany to recover the alleged State aid, and

— Order the Commission to pay the costs.